“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Tuesday, December 4, 2012

Same Sex Marriage and the Supreme Court: We Do Not Need Another Roe v. Wade

My friends who enthusiastically support same sex marriage had their eyes focused last Friday on the United States Supreme Court. The Court was considering (and is still considering) hearing several cases challenging state prohibitions on same sex marriage as well as the Defense of Marriage Act, an act passed by Congress in 1996 and signed into law by President Bill Clinton which said 1) states did not have to recognize same sex marriages conducted in other states and 2) and which denied federal benefits to same sex couples.

The United States Supreme Court

By way of background, it takes the vote of four of nine justices before a case will be heard. The Supreme Court only hears about 150 cases a year, about 1% of the total number of appeals that land on the justices desk. They typically focus on cases which are of great public importance or on issues in which various jurisdictions have reached different legal conclusions on the same issue. The fact the Supreme Court decides not to hear a case is not to be afforded great meaning. The Court simply doesn't have the time and resources to overturn every lower court decision that might, upon closer examination, have been decided incorrectly.

Many of those sex marriage supporters were giddy over the prospect of the United States Supreme Court sweeping in, declaring state bans on same sex marriage unconstitutional, thereby legalizing it for all 50 states in one fell swoop. In other words, they were hoping for another Roe v. Wade, the 1973 decision which imposed a prohibition on states proscribing abortion before the end of the second trimester, a decision which invalidated abortion laws in most jurisdictions in the country.

Justice Ruth Bader Ginsburg, an appointee of President Bill Clinton, could hardly be confused with a conservative Justice Scalia or Justice Thomas. She co-founded the Women's Rights Project at the American Civil Liberties Union and later served as the organization's general counsel. She is an ardent defender of abortion rights. She in an interview earlier this year said the Court's jumped the gun on Roe v. Wade, that the country wasn't ready to accept the decision and that it would have been wise to bypass hearing the case in 1973. I would go further than that. It is not the job of the Court to act as a superlegislature, to adopt policies, through dubious constitutional interpretation, that justices believe should be adopted. Worse than that the decision, nearly forty years later,the decision has left a sharply divided country. As much as the legislative process is criticized, it is cathartic and imparts legitimacy on the compromises reached by those elected legislatures. In 1973 state legislatures were in the process (a fact Justice Ginsburg acknowledges) of dealing with the abortion issues and reaching compromises. Roe v. Wade shortcircuited that process and left a scar on this country which has never healed.

Advocates of same sex marriage cannot be faulted for impatience with the democratic process and hoping for a Roe v. Wade II that effects a sweeping national mandate that imposes the policy that same sex marriage must be permitted. But I would urge more patience. The fact is the polling numbers in just the past ten years have moved tremendously in favor of allowing same sex marriage. Voters and legislatures are starting to respond. The political process is working. Let's not shorcircuit that process via dubious rewriting of our Constitution. Advocates should not just want the result that same sex marriage be permitted, but also that the American people accept the result.

Having said that, there is a reason for even the most conservative person to want the Supreme Court to hear a case involving the Defense of Marriage Act. Part of conservatism is a belief in federalism, that unless specified otherwise, power rests with state legislatures. The Defense of Marriage Act undermines federalism by punishing states which have decided to allow same sex marriage. That punishment comes in the form of the denial of federal benefits to same sex couples who are legally married. The chief benefit denied is the ability to file jointly and reduce a couple's tax burden.

Much like the federal law criminalizing marijuana possession, the Defense of Marriage Act, undermines the right of states to decide issues that the Constitution reserves to them. As a conservative who believes in a restrained view of the constitution, I believe it is solely the states' right to decide the same sex marriage issue . Nowhere does in the Constitution is the federal government granted power to decide the legality of marriage. But the federal government is seeking to do exactly that via the DOMA by using its power to confer and deny benefits as a club to use against states and its citizens who decide otherwise via state legislation.

Too many of my conservative friends are quick to abandon federalism when Congress takes a conservative posture toward an issue, even on an issue outside its national jurisdictino. We on the right need to be more consistent. Let states legislatures work through the issue, let the political process play itself out.

1 comment:

Paul, although I suspect that you ad I disagree on whether or not the Equal Protection Clause of the Constitution requires same sex marriage, you may be simply saying that even if that's arguably the case, the Supreme Court should avoid a Roe versus Wade type backlash like Judge Ginsberg seems to believe has been counterproductive because states were moving in that direction anyway.

I appreciate your sympathy for the impatience of the gay and lesbian community here. Marriage issues may will involved different "judicial restraint" concepts than abortion issues in that married couples tend to move across state lines, and therefore their legal status, hopefully longer than the nine (or likely much fewere) years involved in pregnancy termination decisions, has a more constant and enduring significance to them.

You correctly state the premise that in general most people simiply feel better when their elected law makers, rather than "unelected judges" are seen to make law. That's not to diminish the view, which I hold, that the judiciary has a role to play that is sometimes necessarily countermajoritarian. It's just that legislation goes down better with many folks.

That's what is so ironic and in my view hypocritical about the proponents of HR-6, the proposed "Marriage Protection Amendment" to Indiana's Constitution. I know you likely believe that the people of Indiana have a right to ban same sex marriage, as is already the law. I respectfully disagree. But there remains a legitimate public policy debate over whether or not the people shoud simply reflect their view through legislation or enshrine it more or less "permanently" through constitutional amendment.

This is especially true when in 2007 proponents were patting themselves on the back by saying that the prior version of HJR-6 would preserve to the General Assembly the right to deal with issues like civil unions or anything "substantially similar to" marriage. Now without much fanfare they have changed that so the legislature as well as those "unelected judges" are restrained, something they were critical of in other states. But they turned around and have adopted the languate they said was immoderate.

We can agree to disagree as to the constitutional issue.....but i think we're on the same wavelength concerning the fact that it's more acceptable to most Hoosiers that legislators retain their full ability to debate and enact in the important arena of domestic relations including marriage.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.